USCIS Proposes Changes to The Green Card Waiver Process Which Permits Applicants to Apply in the U.S.

January 6, 2012

The USCIS has announced a proposal to permit aliens who qualify for I-601 hardship waivers to apply for the waiver while in the United States. This provision largely applies to family-based green card petitions. In most case, it involves an illegal alien spouse of a U.S. citizen/permanent resident or the parent of a U.S. citizen. Generally, such illegal aliens who entered without inspection must depart the U.S. to apply for a waiver at a consulate abroad before they may be admitted to legal permanent residency. However, if such illegal aliens can show extraordinary or extreme hardship to their U.S. citizen relative, they would qualify to obtain a waiver of inadmissibility and continue with the green card process. Before this proposed change, such waivers could only be processed and approved in a U.S. consulate abroad and the alien had to leave the U.S. to apply for it. That process typically took several weeks or months, requiring that the alien applicant remain outside the United States and away from his/her family for extended periods of time while waiting for the process to complete.

Under this new proposal, such aliens may now submit waiver applications in the United States and only have to leave the country after the application is approved. Once approved, the alien will then depart for a short trip to a U.S. consulate abroad to complete the visa process. This very important new provision will reduce the amount of time that families are separated while an alien is processing the waiver request. It also provides certainty to aliens who would already be approved for waivers before having to leave the country to apply for the green card. Prior to this proposal, aliens had to leave the U.S. without knowing whether or not the waiver would be approved. If the waiver is ultimately not approved, the alien would not be able to return to the U.S. and would suffer a very lengthy or permanent separation from his/her family. [Review the Proposed Waiver Process Changes]

Extension of Post-Completion Optional Practice Training and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations

April 3, 2012

USCIS recently released notice of the automatic extension of F-1 student status in the United States for certain students. This change allows students with pending or approved H-1B petitions for an employment start date of October 1, 2012 to remain in F-1 status during the period of time when an F-1 student status and work authorization would expire through the start date of their approved employment period. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension. By filling the ‘gap’ between the end of F-1 status and the beginning of H-1B status, the qualifying student is not required to leave the United States or apply for an H-1B visa at a consular post abroad. [Review the Cap-Gap Memo]

F-1 STEM OPT Extension

May 2012: The Department of Homeland Security recently approved certain Classification of Instructional Program codes for a 17-month extension of the Optional Practical Training (OPT) period of postsecondary students who graduated with a science, technology, engineering or mathematics degree. The Department of Homeland Security believes that it is in the nation’s interest to allow students in such emerging fields to be eligible for an OPT extension. [Review the List]

Extend Stay of R-1, Religious Worker Visa, by Recapturing Time

March 2012

USCIS recently provided instructions in adjudicating R-1 nonimmigrant visa petitions for aliens coming to the U.S. temporarily to perform religious work. The R-1 nonimmigrant classification is for aliens seeking to enter the U.S. for a period of up to five years to work as ministers or in a religious occupation. Prior to the new instructions, when calculating the five-year maximum period of stay, USCIS did not subtract the time in which the religious worker was outside the U.S for vacations, family visits, or to travel. Now, USCIS officers who adjudicate R-1 nonimmigrant visa petitions are directed to not count the days spent outside the U.S. toward the maximum period of stay in the U.S. in R-1 status, therefore, extending the religious worker and his/her dependents’ stay in the U.S.[See full Article]

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